BY AKIDUS BUORO, ABUJA – The Supreme Court of Nigeria On Friday, March 6, 2026, dismissed the appeal filed by EMERGING MARKETS TELECOMMUNICATIONS SERVICES LIMITED (doing business as 9 Mobile) against the judgement of the Court of Appeal and the Federal High Court in appeal No. CA/ABJ/660/2023 in favour of AFDIN VENTURES LIMITED, DIRBIA NIGERIA LIMITED and four others.
The apex court in a ruling delivered by Justice Tyjani Abubakar, who led four other Justices of the Court, awarded cost of Ten Million Naira against the Appellant (Emerging Markets Telecommunications Services Limited) in favour of the 1st and 2nd Respondents, as well as the 3rd and the 4th Respondents respectively.
The Supreme Court held that the appeal by Emerging Markets Telecommunications Services Limited was totally devoid of merit, thus deserved to be and is thereby dismissed.
Justice Abubakar held that the dispute subject of the appeal tinged its origin to Suit No. FHC/ABJ/CS/288/2018 which commenced before the Federal High Court, Abuja Division, by the 1st and 2nd Respondents (AFDIN Ventures Limited and DIRBIA Nigeria Limited) wherein they sought, inter alia, the refund of the sums of USD 13,300,910 and USD 30,030,040 respectively from the Defendants, including the Appellant in this appeal.
Accordingly, the Supreme Court affirmed the judgment of the Court of Appeal, Abuja Division in appeal No. CA/ABJ/660?2023 delivered on 22nd day of November 2024, stating that the Supreme Court is not only the final Court in the land, but also as a policy Court with the responsibility of ensuring that vexatious and incompetent appeals that have the tendency of ridiculing the country in the eyes of the International Community are discouraged.
Justice Abubakar noted that on 2nd day of September 2021, the Arbitral Tribunal delivered a partial award on jurisdiction, adding that on the 26th day of September 2022, the Tribunal rendered its Final Award with certain typographical corrections thereafter issued on the 18th day of October 2022 and 31st day of October, 2022.
He further said; “By the Final Award, the Appellant, alongside the 5th and 6th Respondents, were ordered, jointly and severally, to refund to the 1st and 2nd Respondents the sums earlier set out in this Judgment.
The Supreme Court further held that ordinarily, the combined effect of the Appellant’s failure to comply with the order to make deposit of the Judgment sum and the mandatory requirements of Order 6 Rule 3(5) of the Supreme Court Rules, 2024, compel the apex Court to sustain the preliminary objection and terminate the appeal.
Justice Abubakar held; “Respect for positive orders of Court by litigants remains necessary and a party in contempt of an order of Court is not entitled to audience.
“The Appellant (Emerging Markets Telecommunications Services Limited) herein having fully benefited from the transaction leading to the dispute cannot later hide under the principles of the doctrine of privity of contract to evade liability.
“The Sole Arbitrator’s award, grounded in monies had and received, cannot be dismissed merely because the Appellant was not a formal signatory. In any event, the Court is not vested with the authority to sit on appeal over the findings of act or conclusions of law reached by arbirators merely because it might have arrived at a different conclusion.
“The duty of the Court is not to examine whether the arbitrators were right or wrong in law, but to scrutinise the award itself and determine whether, on the state of the law as apprehended and articulated by the arbitrators, and on the facts as set out on the face of the award, they acted within the bounds of the law as they themselves understood it.
“The inquiry is therefore subjective rather than objective. The Court places itself in the position of the arbitrators, not above them, and proceeds on the hypothesis of their stated understanding of the law, to ascertain whether they faithfully applied that understanding to the issues submitted for determination,” the Supreme Court ruled.
The apex court of the land also noted that upon the application of the Defendants and pursuant to an arbitration clause contained in the governing agreements between the parties, the Federal High Court, per Nyako, J., with the concurrence of the parties, on the 11th day of December, 2019 referred the matter to arbitration.
“Consequently, a Sole Arbitrator was appointed, and arbitral proceedings were duly conducted, partly virtually and partly physically. On 2nd day of September 2021, the Arbitral Tribunal delivered a partial award on jurisdiction. “Subsequently, on the 26th day of September 2022, the Tribunal rendered its Final Award. Certain typographical corrections were thereafter issued on the 18th day of October 2022 and 31st day of October, 2022. By the Final Award, the Appellant, alongside the 5th and 6th Respondents, were ordered, jointly and severally, to refund to the 1st and 2nd Respondents the sums earlier set out in this Judgment”.
The Supreme Court noted that following the publication of the Final Award, two parallel procedural steps were taken.
It stated; “On the 31st day of October, 2022, the Appellant instituted proceedings at the Lagos Division of the Federal High Court seeking to set aside the arbitral award. Thereafter, on the 18th day of January, 2023, the 1st and 2nd Respondents filed before the Federal High Court, Abuja Division, before Nyako J., the learned trial Judge who referred the matter to arbitration, a motion seeking recognition and enforcement of the Final Award pursuant to the applicable provisions of the Arbitration and Conciliation Act and the Federal High Court (Civil Procedure) Rule 2019.
“In the Appellant’s Brief of Argument filed on the 24th day of February, 2025, but deemed as properly filed and served on the 8th day of December, 2025, learned Senior Counsel Usoro SAN leading other Counsel crafted the following two issues for determination:
(a) Whether the lower Court was right in affirming the decision of the trial Court recognising the Arbitral Award against the Appellant when the entire Arbitral proceedings was a nullity for want of jurisdiction. (Distilled from Grounds 1,2,5 and 6 of the Amended Notice of Appeal).
(b) Whether the lower Court was right in striking out issue One which emanated from the Grounds 1 and 2 of the Appellant Amended Notice of Appeal before the Lower Court (Distilled from Grounds 3 and 4 of the Amended Notice of Appeal)”.
Justice Abubakar noted that the 1st and 2nd Respondents’ brief of argument was filed on the 12th day of May, 2025 but deemed as properly filed and served on the 8th day of December, 2025 through learned Senior Counsel Igwe, SAN, and Magaji, SAN.
The Supreme Court further said that it is noteworthy that the 1st and 2nd Respondents filed a Notice of Preliminary Objection dated the 9th day of May 2025 but filed on the 12th day of May 2025, adding that the arguments in connection with the Preliminary Objection have been incorporated into 1st and 2nd Respondents’ Brief of Argument, particularly at pages 7-12 thereof.
According to the Supreme Court; “The law is well settled that whenever a preliminary objection is filed challenging the competence of an action or appeal, the preliminary objection must first be taken and determined before the substantive suit or appeal.
“The 1st and 2nd Respondents contended that the appeal before this Court is incompetent on two grounds. First, the Appellant failed to comply with a condition precedent imposed by the Federal High Court for the stay of proceedings and the appeal to the lower Court, which is the deposit of the judgment sum with the Chief Registrar. “Counsel referred to the order of the trial Court made on the 2nd day of June 2023, which stayed proceedings pending the determination of the Appellant’s appeal before the lower Court, the trial Court also ordered deposit of the Judgment sum within one month.
“Learned Counsel for the 1st and 2nd Respondents submitted that the Appellant’s appeal against this order was dismissed by the lower Court on the 10th day of October 2024, with no further appeal instituted.
“However, in my humble understanding, this is not the end of the matter. The appeal before this Court arises from proceedings concerning the recognition and enforcement of arbitral award under the Arbitration and Mediation Act, 2023,” it held.
The Supreme Court held that proceedings of this nature are not ordinary civil contests or matters occurring from day to day in our Courts, as they command commercial importance and impact on the perception of our jurisdiction by the International Commercial Community.
In the words of the apex court; “They are sui generis, they implicate the sanctity of arbitral awards, commercial finality, and Nigeria’s standing within the international arbitration regime. Arbitration rests upon the pillars of party autonomy, expedition, minimal judicial interference, and finality”.
Justice Abubakar’s judgment which was agreed with by four other Justices of the Supreme Court on the panel, warned that the “Court must not encourage procedural indiscipline”. The Court noted that the Appellant’s defaults are neither trivial nor excusable, but are deprecated in the strongest terms, stressing that justice is not served by sacrificing determination of the substantive matter to the altar of technical rigidity, especially where the jurisdiction of the Court remains intact and the real issues in controversy between the contending parties call for authoritative resolution.
The Supreme Court also held that the Appellant’s insistence on formal signature as the sole gateway to arbitral jurisdiction reflected a 19th century rigidity inconsistent with contemporary commerce and declared that the doctrine of privity was developed to protect parties from being burdened by obligations they never undertook.
According to Justice Abubakar; “It was never intended as a shield for those who actively participated in and benefited from a contractual arrangement while seeking to evade its dispute resolution mechanism.
“The principle of privity of contract, though foundational, is not impregnable. It yields where the facts reveal a composite transaction, agency, alter ego, assumption of obligations, or conduct giving rise to estoppel.
“As earlier stated, in the instant case, the Sole Arbitrator found, upon concrete and cogent evidence, that the Appellant was “inextricably intertwine” with the investment transaction; that it received substantial sums derived from the very Offer Terms and Custodial Agreements containing the arbitration clause; and that its role was central to the dispute.
“The Appellant’s invitation to this Court to re-evaluate the factual matrix and substitute its view for that of the Sole Arbitrator is, with due respect, curious, bizarre and misconceived.
“Arbitration is chosen precisely to avoid protracted judicial re-litigation. As this Court has repeatedly emphasised, parties who voluntarily elect to submit to arbitration are bound by the award for better or worse, unless the award is vitiated on recognised statutory grounds.
“The doctrine of Pacta sunt servanda which portends that agreements must be kept is the hallmark of arbitration,” the apex court held.
Justice Abubakar further said that as the learned Counsel for the 1st and 2nd Respondents as well as the 3rd and 4th Respondents rightly submitted, jurisdiction is determined by the claimant’s pleadings, stressing that the claims sought and the reliefs granted by the arbitral tribunal, which include restitution and breach of fiduciary duty, were civil in nature not criminal sanctions.
The Supreme Court held that the equitable doctrine of restitution further fortifies the Respondents’ case. Where a party has received monies in circumstances that render retention unconscionable, the law imposes an obligation to repay, independent of strict privity.
It further held that the Sole Arbitrator’s award, grounded in monies had and received, cannot be dismissed merely because the Appellant was not a formal signatory, stressing that the Court is not vested with the authority to sit on appeal over the findings off act or conclusions of law reached by arbirators merely because it might have arrived at a different conclusion.
The judgment delivered by Justice Tyjani Abubakar was concurred to by Justices Mohammed Lawal Garba, Haruna Simon Tsammani, Habeeb Adewale Olumuyiwa Abiru and Jamilu Yammana Tukur, who were members of the panel in the case.
